SPRINT SPECTRUM v. BOARD OF ZON. APP.

SPRINT SPECTRUM L.P., PLAINTIFF,v.THE BOARD OF ZONING APPEALS OF THE TOWN OF BROOKHAVEN, DEFENDANT

The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

In this case, the plaintiff Sprint Spectrum L.P. ("Sprint" or the "plaintiff") alleges that the Board of Zoning Appeals of the Town of Brookhaven (the "BZA" or the "defendant") denied its request for a special use permit to build a 60-foot monopole in East Setauket located in the Town of Brookhaven, New York (the "Town"), in violation of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c). Presently before the Court are Sprint's motion for partial summary judgment and the BZA's cross-motion for partial summary judgment.

I. BACKGROUND

The facts are taken from the pleadings, affidavits and exhibits submitted in support of the parties' respective motions. Sprint provides, among other things, personal wireless telephone services to its customers. Pursuant to the rules and regulations of the Federal Communications Commission (the "FCC"), Sprint is licensed to construct, maintain and operate a personal communications service in the New York metropolitan area, including Suffolk County.

Code § 85-452. Further, the Code requires that new towers be set back from any adjoining lot line a distance equal to at least 150% of the height of the tower, although the BZA in its discretion may reduce the setback requirement to 75%, if "the goals of the local law would be better served thereby." Id. § 85-457(B)(4)(a), (c).

On December 20, 2000, Sprint submitted an application to the Town's Building Inspector for a building permit allowing the construction of a 120-foot monopole, camouflaged as a flagpole. That application was denied. Sprint then filed an application with the BZA seeking a special use permit and in May 2001 a public hearing on the permit application was held. Prior to the hearing, Sprint redesigned its proposed cell site by reducing the height of the monopole from 120 to 60 feet and located the necessary ancillary equipment inside a building instead of on the monopole.

B. . . . that other wireless communications carriers
are currently providing service to the area of the
subject premises. Moreover, the roaming feature of the
applicant allows a customer to still obtain wireless
services in the `gap' area. Therefore, any gap in
service is entirely limited to the applicant. Thus,
the denial of this application will not have the
effect of prohibiting wireless services in the East
Setauket area.

C. . . . that the proposed monopole will have a
negative visual impact on the aesthetics of the East
Setauket community. The testimony and evidence
submitted clearly demonstrated that the subject
premises is located between the East Setauket and Old
Setauket historic district transition zones where the
majority of the buildings are one-story with colonial
facades. Thus, a 60-foot monopole will adversely
impact this area.

D. [t]hat since the proposed monopole would operate
below the required Federal Communication Commission
guidelines, the Board of Zoning Appeals is preempted
from addressing the health or environmental effects of
radio frequency emissions.

In Re Sprint Spectrum, L.P., BZA Conclusions at 6 (June 13, 2001).

On July 6, 2001, Sprint filed the instant complaint against the BZA. The complaint asserts six claims. The first claim alleges that the BZA's denial of Sprint's application was not supported by substantial evidence in violation of 47 U.S.C. § 332(c)(7)(B). The second claim alleges that the BZA discriminated against Sprint because it prevented Sprint from competing in the East Setauket area. The third claim alleges that the BZA's denial of the application violated Sprint's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The fourth claim alleges that the BZA's denial violated the "Takings Clause" of the Fifth Amendment to the United States Constitution and Article 1, Section 7 to the New York State Constitution. The fifth claim alleges that the BZA's denial of the application without substantial evidence under the TCA violated 42 U.S.C. § 1983. The sixth claim seeks to set aside the BZA's denial of the application pursuant to Article 78 of the New York State Civil Practice Law and Rules.

"When the movant demonstrates through competent evidence that no material facts are genuinely in dispute, the non-movant `must set forth specific facts showing that there is a genuine issue for trial.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(e)). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Id. (internal quotation marks and citations omitted). Lastly, the existence of disputed facts that are not material to the issues at hand may not defeat summary judgment. Id.

"As to materiality, the substantive law will identify which facts are material." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Id. If there is evidence in the record, including affidavits, exhibits, interrogatory answers, and depositions, as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Lane v. New York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir. 1994); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).

"[T]he trial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to decid[e] them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994).

In this case, the record contains no evidence that the BZA treated other competitors differently than Sprint. There is no evidence that the BZA allowed one of Sprint's competitors to build a monopole in the same proposed site area. In addition, the record indicates that Sprint's competitors have existing facilities which service East Setauket on Mud Road and Hulse Road; two sites that Sprint stated it intended to establish wireless facilities.

In short, Sprint has presented no evidence to support its conclusory claim of unreasonable discrimination under the provisions of the TCA. Accordingly, Sprint's motion for partial summary judgment on the second claim alleging that the BZA's denial unreasonably discriminated against Sprint under the TCA is denied and the BZA's motion for partial summary judgment dismissing that claim is granted.

D. The Section 1983 Claim

Sprint brings a Section 1983 claim based on a violation of the TCA. Because the Court finds that there is no violation of the TCA, the BZA's motion for partial summary judgment dismissing that claim is granted.

III. CONCLUSION

Based upon the foregoing, it is hereby

ORDERED, that Sprint's motion for partial summary judgment on the first claim alleging that the BZA's denial was not supported by substantial evidence under the TCA is denied and the BZA's motion for partial summary judgment dismissing that claim is granted; and it is further

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.